Case 4:19-cv-02033-YGR Document 312 Filed 09/29/22 Page 1 of 5
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`IN RE APPLE INC. SECURITIES LITIGATION
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`Case No. 4:19-cv-2033-YGR
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`ORDER DENYING MOTION TO CERTIFY
`ORDER FOR INTERLOCUTORY APPEAL AND
`FOR STAY OF PRODUCTION
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`Re: Dkt. No. 304
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`On September 12, 2022, this Court issued an order denying defendants’ motion for relief from
`a nondispositive pretrial order issued by the Honorable Chief Magistrate Judge Joseph C. Spero and
`ordering defendants to produce documents in accordance with that order. Defendants now seek
`certification for immediate appeal of both orders to determine if Judge Spero should have applied the
`D.C. Circuit’s standard for assessing attorney-client privilege where a document has both a legal and
`non-legal primary purpose.1
`I.
`BACKGROUND
`The Court incorporates its order denying defendants’ request for relief as well as Justice
`Spero’s thorough 43-page order describing the discovery disputes at issue, his process of reviewing
`such documents, including by in camera review, and his findings. (Dkt. Nos. 302; 272.)
`II.
`LEGAL STANDARD
`Section 1292(b) is a “departure from the normal rule that only final judgments are
`appealable.” James v. Price Stern Sloan, Inc., 283 F.3d 1064, 1068 n.6 (9th Cir. 2002). This
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`1 The Court has reviewed the papers submitted by the parties in connection with defendants’
`motion to dismiss and has determined that the motion is appropriate for decision without oral
`argument, as permitted by Civil Local Rule 7-1(b) and Federal Rule of Civil Procedure 78. See Lake
`at Las Vegas Investors Group, Inc. v. Pacific Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991).
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`Case 4:19-cv-02033-YGR Document 312 Filed 09/29/22 Page 2 of 5
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`exception “must be construed narrowly.” Id. Under section 1292(b), a federal district court may
`certify a non-dispositive order for interlocutory review where: (1) the order “involves a controlling
`question of law,” (2) “as to which there is substantial ground for difference of opinion,” and (3) “an
`immediate appeal from the order may materially advance the ultimate termination of the
`litigation.” 28 U.S.C. § 1292(b). Satisfaction of all three elements is required. C.W. v. Epic Games,
`Inc., 2020 WL 6064422, at *1-*2 (N.D. Cal. Oct. 14, 2020). The party seeking certification bears the
`burden of demonstrating that the requirements are satisfied and that such a departure is warranted. Id.
`Regarding application of this analysis to determinations of attorney-client privilege, the
`Supreme Court explained in Mohawk Industries, Inc. v. Carpenter, that “[m]ost district court rulings
`on [attorney-client privilege] involve the routine application of settled legal principles” and “are
`unlikely to be reversed on appeal, particularly when they rest on factual determinations for which
`appellate deference is the norm.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 110 (2009). An
`exception to this general rule is “when a privilege ruling involves a new legal question or is of special
`consequence,” in which case, district courts “should not hesitate to certify an interlocutory appeal.”
`Id. at 111.
`III. ANALYSIS
`As an initial matter, the Court notes that while defendants seek to appeal this Court’s order
`denying review of Judge Spero’s order, defendants do not challenge the finding by this Court that
`Judge Spero’s analysis was not clearly erroneous. Defendants appear to only challenge this Court’s
`order to the extent it requires them to comply with Judge Spero’s order. With that preface, the Court
`considers whether defendants have shown that certification is warranted as to Judge Spero’s order.
`A.
`Controlling Question of Law
`With respect to the first question of whether the issue to be certified is a “controlling question
`of law,” the moving party must show that “resolution of the issue on appeal could materially affect
`the outcome of litigation in the district court.” In re Cement Antitrust Litig., 673 F.2d 1020, 1026 (9th
`Cir. 1981). The scope of the attorney-client privilege is a legal question, but defendants have not
`shown that it is a controlling legal question here. Judge Spero’s order does not indicate that any of the
`documents he ordered defendants to produce had legal and non-legal primary purposes. Accordingly,
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`Case 4:19-cv-02033-YGR Document 312 Filed 09/29/22 Page 3 of 5
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`guidance from the Ninth Circuit regarding how to analyze such documents is unlikely to have any
`material impact on this case. To the extent defendants seek to challenge Judge Spero’s factual
`findings, appeal is even less likely to provide relief, given that “deference is the norm” when it comes
`to factual determinations. Mohawk Indus., 558 U.S. at 110. Defendants have not persuaded the Court
`that resolution of this issue could materially affect the outcome of the litigation. Though the Court
`may deny defendants’ motion on this basis alone, it addresses why defendants have failed to meet the
`other requirements for interlocutory appeal.
`B.
`Ground for Difference in Opinion
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`Defendants assert that there is a circuit split on what test should apply when determining the
`privilege of documents with dual legal and non-legal primary purposes. Again, the Court notes that
`there is no indication in Judge Spero’s order that any of the documents in question fit within that dual-
`purpose category. It is undisputed that under In re Grand Jury documents that do not have both a
`legal and non-legal primary purpose are to be analyzed using the “the primary purpose test,” which
`Judge Spero applied. Accordingly, defendants have not identified any grounds for difference in
`opinion as to the standard that applies to the documents at issue here.
`That said, even if some if some of the documents in question fit into the dual-purpose
`category, defendants have not demonstrated significant difference in opinion regarding how to assess
`such documents. Defendants assert that In re Grandy Jury left open whether such documents should
`be analyzed under the Kellogg standard. The Ninth Circuit’s decision was much narrower than
`defendants represent. The Court explicitly declined to apply Kellogg in the case before it but left
`open if the rule may ever be applicable in this circuit. The Court cabined this statement by noting that
`Kellogg “dealt with the very specific context of corporate internal investigations” and that “the
`universe of documents in which the Kellogg test would make a difference is limited. The Kellogg test
`would only change the outcome of a privilege analysis in truly close cases, like where the legal
`purpose is just as significant as a non-legal purpose.” In re Grand Jury, 23 F.4th 1088, 1095 (9th Cir.
`2021).
`The Court also is not persuaded that there is a meaningful circuit split on this issue.
`Defendants have not identified any other circuit courts that have adopted Kellogg or otherwise
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`Case 4:19-cv-02033-YGR Document 312 Filed 09/29/22 Page 4 of 5
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`adopted an approach to attorney-client privilege broader than that used in the Ninth Circuit. Indeed,
`defendants point out that the Second and Seventh Circuits have privilege standards narrower than the
`Ninth Circuit’s. If anything, this indicates that Kellogg may be an outlier and that circuits are
`generally in agreement that dual-purpose documents are not privileged. Accordingly, defendants do
`not meet their burden to show grounds for difference in opinion on a relevant legal question.
`C.
`Advancement of the Litigation
`Lastly, the Court considers whether an immediate appeal from the order may materially
`advance the ultimate termination of the litigation. “The ultimate question is whether permitting an
`interlocutory appeal would minimize the total burdens of litigation on parties and the judicial system
`by accelerating or at least simplifying trial court proceedings.” C.W., 2020 WL 6064422, at *4
`(internal quotation marks and citations omitted).
`Defendants argue that if the Ninth Circuit or Supreme Court adopts Kellogg, a decision by this
`Court may be vacated, requiring additional expenditure of time and resources by the Court and the
`parties. District courts are always functioning under the possibility that the law they are applying
`may change. Even if Kellogg were adopted, as addressed, there is no indication in Judge Spero’s
`order that any of the documents at issue are within the “limited” universe of documents to which
`Kellogg could potentially apply.
` Defendants also argue that interlocutory appeal could “facilitate the prospect of settlement by
`giving the parties a clear view of the scope of Plaintiff’s claims and the evidence that will or will not
`be available to prove those claims.” (Dkt. No. 304 at 9.) It is not clear that the scope of plaintiff’s
`claims and what is available to support them will even change based on the discoverability of the
`documents in question. Additionally, the parties will have just as much clarity about the scope of
`plaintiff’s claims and evidence available if the documents are produced.
`In short, there is no indication that certifying appeal here will materially advance the
`termination of this case.
`IV. CONCLUSION
`Defendants’ motion is DENIED. Defendants are ORDERED to produce to comply with Judge
`Spero’s order within 24 hours of issuance of this order.
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`Case 4:19-cv-02033-YGR Document 312 Filed 09/29/22 Page 5 of 5
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`This terminates docket number 304.
`IT IS SO ORDERED.
`Dated: September 29, 2022
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`____________________________________
` YVONNE GONZALEZ ROGERS
`UNITED STATES DISTRICT COURT JUDGE
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